Hallvard Sandven

This article critically assesses Patti Lenard’s conception of subjection, which lies at the heart of Democracy and Exclusion. My aim is to uncover and analyse the logic underlying this conception, and then to offer an objection to Lenard’s application of it. I will argue that Lenard’s account of subjection in contemporary border control is underinclusive: it fails to capture a set of outsiders who, by the logic of her conception, should count as subjected to the state’s legal order. Further, and more controversially, I suggest that Lenard’s account is also overinclusive: it captures a set of insiders who, by the logic of her conception, should not count as such.

Recent analytical political theory has sought to develop a conceptual analysis of feasibility for the purpose of specifying the “ought implies can” principle. Two central premises of this debate are (i) that feasibility has a significant role to perform in normative deliberation and (ii) that it is a mistake to moralize its substantive content. I argue that these premises are fundamentally incompatible and that feasibility is, therefore, superfluous or moralized in normative deliberation. Having established the validity of this thesis, I go on to argue that it has significant implications, which force us to rethink feasibility’s role in normative discourse.

The EU's power is expanding, calling for reassessments of its normative legitimacy. This article proposes a novel criterion for assessing the EU's legitimacy: symmetry in the delegation of power. We illustrate the usefulness of this criterion through an analysis of the European border regime. Existing analyses of the border regime have tended to dismiss it as weak and intergovernmental. We show, to the contrary, that it is both strong and weak. The EU wields significant power in border control but lacks power altogether in immigration policy. This asymmetry has rendered the EU incapable of discharging the moral responsibilities that arise in migration control, posing a novel legitimacy challenge. Finally, we argue that the symmetry criterion generalizes and can shed light on the EU's legitimacy beyond the area of migration.

This article interrogates the widely held, but rarely defended, view that states wield legitimate power over potential immigrants when and because they refrain from violating their human rights. I reconstruct a strong argument for this view, which turns on a claim about the limited power states claim over migrants. Drawing on recent empirical work, I show how this argument is inapplicable to the border regimes of a set of wealthy democracies. These regimes are characterized by a practice that is coordinated and extraterritorial in a way that undercuts the case for holding them to a minimal legitimacy standard. By participating in this practice, these states wield significant power over potential immigrants. I argue that this power exposes potential immigrants to novel risk, which in turn triggers a demand for the satisfaction of a higher standard of legitimation.

This article offers a critical discussion of “institutional conservatism” in political philosophy on migration. These are normative theories of exclusion grounded in minimal descriptive accounts of the state. It argues that this methodological strategy, which has been deployed most prominently by Michael Blake and Sarah Song, demands serious attention because it enables the avoidance of a problem of applicability that is pervasive across different theories of the right to exclude. The article then shows that, despite its initial appeal, institutionally conservative theories face a different problem. Their state-based methodology renders them structurally incapable of generating a convincing account of the legitimacy of border control, as distinct from an account of justice in immigration policy. Building on this argument, the article provides further support for the claim that the ethics of migration should turn towards an analysis of the state system.

In the last seven years, close to twenty thousand people have died trying to reach Europe by crossing the Mediterranean Sea. Rescue missions by private actors and NGOs have increased because both national measures and measures by the EU’s border control agency, Frontex, are often deemed insufficient. However, such independent rescue missions face increasing persecution from national governments, Italy being one example. This raises the question of how potential migrants and dissenting citizens should act towards the EU border regime. In contrast to the literature, which mainly addresses migration on the basis of justice requirements, this article focuses on the legitimate authority of the EU’s border regime. Focusing on the legitimacy criteria for states’ claims to regulate migration opens a fruitful normative perspective, given the pervasive disagreement over the content of justice in migration. What reasons for compliance and non-interference does legitimacy supply for potential immigrants and dissenting citizens? And what legitimacy standard may be appropriate for the power that individual states claim over potential immigrants? We argue that, even assuming a minimal legitimacy standard for the state-migrant relationship, the structure of the EU’s border regime exhibits unique features, which cause it to stand in tension with such a standard. By coordinating its Member States’ border regimes, especially through Frontex, the EU claims and exercises power over potential immigrants. However, the asymmetrical delegation of state powers to the EU means that the power involved in regulating European borders is, in core respects, unaccountable. This unaccountability, we argue, is significant for the legitimacy of the EU’s border regime. This article sheds new light on the morality of unauthorised rescue missions by assessing the permissibility of resistance to the EU’s border regime.

This article argues for a systemic conception of freedom as non-domination. It does so by engaging with the debate on the so-called coalition problem. The coalition problem arises because non-domination holds that groups can be agents of (dominating) power, while also insisting that freedom be robust. Consequently, it seems to entail that everyone is in a constant state of domination at the hands of potential groups. However, the problem can be dissolved by rejecting a ‘strict possibility’ standard for interpreting non-domination’s robustness requirement. Frank Lovett and Philip Pettit propose to restrict the relevant domain of possible worlds by reference to two epistemic conditions pertaining to potential group members. I argue that this strategy unduly limits non-domination’s critical potential. I then argue that a suitably systemic conception of domination avoids this problem. By placing explanatory emphasis on social institutions, and how these bear on the feasibility of individual and collective action, a systemic conception of non-domination avoids the coalition problem in a way that retains its critical potential. The article clarifies the relationship between the rule of law and the social norms and objects to the claim that non-domination is bound to deem the latter irrelevant from the point of view of freedom.